https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1694

Republic v County Government of Mombasa & 4 others (Judicial Review Application 001 of 2024) [2026] KEELRC 1694 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1694 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Judicial Review Application 001 of 2024 K Ocharo, J June 11, 2026 Between Republic Applicant and County Government of Mombasa 1st Respondent County Chief Officer Finance 2nd Respondent Mombasa County Chief Officer Medical Services 3rd Respondent Medical Superintendent Likoni Subcounty Hospital 4th Respondent and Mombasa County Executive Committee Member for Finance Contemnor Ruling 1.By an Application dated 30th June, 2025, the Applicant sought the following orders;1.That this Application be certified urgent and be heard ex parte in the first instance.2.That in the first instance, summons do issue to the Mombasa County Executive Committee Member for Finance by the name Evans Oanda and or any other person holding that office subsequently to the filing of this application to appear before the court in person to show cause why he should not be found guilty of contempt of the order of the Court and punished accordingly, for failing to obey the order of court made on 17th December 2024.3.That the said Mombasa County Executive Committee Member for Finance be declared unfit to hold any public office and or exercise public authority as an officer for his acts of contempt of the Court order.4.That warrants of arrest do issue and be executed by the Officer or such other officer seconded by him, for the arrest of the Mombasa County Executive Committee Member for Finance, by the name Evans Oanda, for the purpose of being committed to jail, for undermining and failing to obey the order of the Court made on 17th December 2024.5.That the costs of this Application be borne personally by the said Mombasa County Executive Committee for the Respondent and paid forthwith or drawn directly from their salaries and or earnings until payment in full. Applicant’s case 2.In her supporting affidavit, the Applicant, Dr Adil Hussein Gulam, instituted against the Respondents in Mombasa County Chief Officer & 3 others, Mombasa ELRC No. 397 of 2018, claiming constructive dismissal, compensation for the unfair dismissal, costs and interest. The matter proceeded on the merits with the participation of all the parties. On 27th January 2022, the Court entered judgment in his favour. 3.The Applicant further states that upon delivery of judgment, his then Advocates on record and his current Advocates asked the Respondents through numerous letters, which were mostly unresponded to, to settle the judgment sum. 4.The Applicant further asserts that ever since the judgment was delivered, the Respondents have failed, refused, ignored and/or neglected to honour in full. He was constrained to institute Judicial Review Proceedings herein for orders of mandamus to compel the contemnor to pay the decreed sum, KShs. 2, 924.05. An order of mandamus was issued on the 25th August 2023. 5.The order was clear and unequivocal, directed at the contemnor to pay the Applicant the sum owed to him by the Respondents. The Respondents and the officers and or agents, in particular the contemnor, were duly notified of the orders of the court granted on 17th December 2024. 6.He contends that the Mombasa County Executive Committee Member for Finance is highly contemptuous of the order of this Court, thus undermining the judicial authority vested in the Court. He should therefore be committed to jail for contempt of court and further ordered to pay a fine. 7.This application is clothed with the power to issue the orders sought in the instant application to uphold the rule of law and further to advance the administration of justice. Respondent’s case 8.The Respondent opposes the Notice of Motion through a Replying Affidavit sworn by Murtaza Tajbhai. He contends that a judgment or an order cannot be enforced through contempt proceedings against an individual unless the judgment or order has been personally served on the person required to do or not to do a thing. 9.The Respondents and contemnor are not aware of the order, as he was neither served with the certificate of order against the Government, order of mandamus, nor application for contempt herein. 10.It was further argued that the County Government’s responsibilities with respect to management and control of public finance, including authorisation and execution of payments under the Public Finance Management Act, 2012 and Section 45 of the County Government Act, lie with the Chief, who is the accounting officer and not the respondent herein. 11.It is further stated that the instant application is misconceived, as the Respondents have not failed, neglected, or refused to pay the decretal sum and costs awarded in the above-mentioned suit. The amount of KShs. 2,380,140 was previously allocated for approval and passed by the County Assembly pursuant to Section 125 of the Public Finance Management Act, 2012. 12.The Respondents budgeted and allocated the said monies owed and made remarkable efforts to pay. A payment voucher was raised for the sum of KShs. 2, 380,140.50 in favour of the Applicants Advocates, Jengo Advocates, on 5th April 2025. However, the payment could not be duly effected as the Advocate failed to provide their Integrated Financial Management System [IFMIS] number. 13.As such, the delay in settling the said amount is not due to willful disobedience, but a result of the failure by the Applicant’s Advocates to provide the forestated number to enable completion of the payment process. 14.The County Government of Mombasa, as required by law, has to seek reallocation in its budget and the necessary approvals from the County Assembly before it can effect the payment. This Court should allow it more time to do so. 15.The County Government is committed to settling the sum. The Court is urged to grant reasonable time within which payment can be made. The contemnor, as a public officer acting in an official capacity, should not be held personally liable for the County Government's obligations unless there is evidence of personal misconduct or bad faith. Applicant’s submissions 16.Counsel for the Applicant urges this Court to note that the replying affidavit was sworn by a person other than the contemnor. Contempt proceedings are in personam. The person who swore the affidavit was not in a position to depose on the matters he did on the contemnor's behalf. As such, the cited contemnor has not offered any defence to the contempt proceedings against him. 17.Counsel further submits that it is not in dispute that there is a judgment against the County Government of Mombasa and that there is an order of mandamus in the instant matter. Further, a certificate of order against Government was obtained and served. The letter dated 28th February 2025, addressed to the deponent of the replying affidavit clearly set out the decretal amount and the IFMIS number. 18.Counsel who has sworn the replying affidavit is perpetuating lies under oath and has thus committed perjury. 19.The request for more time cannot be fairly entertained in the circumstances of this matter. The certificate of order against Government was delivered on 27th January 2022. Four budget cycles have come since then. The order of mandamus was served on 4th February 2025. That was long before the current budget in June 2025. 20.Elaborating on why Courts punish for contempt of orders or orders, Counsel cited a number of decisions, among them, Econet Wireless Kenya Limited v Minister for Information & Communications of Kenya & Another, Teachers Service Commission v Kenya National Union of Teachers & 2 others [2013] eKLR, and Wilfred Nyaundi Konosi t/a Konosi & Co advocates v John Lokorio [2015] eKLR. The Respondent’s /Contemnor’s Submissions. 21.Counsel for the contemnor argues that the replying affidavit sworn by him is properly so sworn as what he has deposed therein are matters well within his knowledge, in line with the stipulations of Order 19 Rule 3[1] of the Civil Procedure Rules. 22.For the contemnor to be held in contempt, the Applicant was expected to demonstrate that there was willful disobedience of the order. To support this point, reliance was placed on Republic v Kenyatta University Ex parte Losem Naomi Chepkemoi- Nairobi Miscellaneous Application No. 573 of 2017. 23.Counsel submitted that the Applicant must prove not merely disregard of a court order, but deliberate and intentional disregard of the court’s order. 24.The order in question was never served personally on the County Executive Committee Member for Finance, Evans Oanda. 25.Order 29 Rule 3 of the Civil Procedure Rules 2010 requires that a Certificate of Order against the Government be personally served on the accounting officer. The County Executive Committee Member for Finance, as the County’s accounting officer, ought to have been personally served to be bound. The fact that the Respondent was aware of the order does not imply that the contemnor had knowledge of it, nor does it diminish the requirement for personal service of the order. To buttress this submission, Counsel places reliance on High Court Miscellaneous Civil Application No. 389 of 2004; Kariuki & 2 others v Minister for Gender, Sports, Culture & Social Services & 2 others. 26.The instant Application is premature, misconceived, and an abuse of the court process, as the necessary statutory and administrative processes for settlement are ongoing. The argument that payment of decretal sums by a County Government must comply with the budgetary process and public finance is supported by Republic v County Secretary, Nairobi City County & another ex parte Wachira Nderitu Ngugi & Co. Advocates [2016] eKLR. Analysis and determination 27.I have considered the Notice of Motion dated 15th August 2025, the supporting affidavit, the Replying affidavit, and the respective submissions of the parties’ Counsel. The application seeks to cite the contemnor for contempt of court for alleged non-compliance with the orders of this Court dated 17th September 2024. 28.The orders required, among other things, that the County Executive Committee Member for Finance pay the Ex parte Applicant the sum decreed in Mombasa ELRC Cause No. 397 of 2018-Dr. Adil Hussain Gulan v Mombasa County Chief Officer Medical Services & 2 others, which stood at KShs. 2, 925, 924.05 on 25th August 2023 as per the certificate of Order against the Government issued on 25th August 2023. 29.Applications for contempt of court and the consequential punishment of those found culpable serve a critical and indispensable function in the administration of justice. They are not merely intended to vindicate the interests of a successful litigant; rather, they are grounded in the broader considerations of public policy, the rule of law, and preservation of the authority and institutional integrity of the judiciary. 30.Court orders are not issued as suggestions or invitations for voluntary compliance. They are binding commands of a competent judicial authority and must be obeyed by all persons to whom they are directed unless and until they are lawfully varied, stayed or set aside. Permitting disobedience with impunity would undermine the very foundation on which the justice system rests. 31.The law of contempt, no doubt, exists to safeguard the rule of law by ensuring that judicial pronouncements are respected and obeyed. It affirms the principle that no person, regardless of status, office, influence, or resources, is above the law or beyond the reach of judicial authority. Compliance with court orders is the price that civilized society pays for the orderly resolution of disputes through legal processes rather than through self-help or anarchy. 32.Further, contempt proceedings protect the institutional integrity and dignity of the judiciary. Public confidence in the courts depends not only on the courts’ ability to determine disputes fairly, but also on the effectiveness and enforceability of their decisions. A court whose orders can be ignored with impunity risks becoming irrelevant, and the administration of justice correspondingly weakened. The power to punish for contempt, therefore, serves as a necessary mechanism for preserving public confidence in the judicial system and ensuring that the court's authority remains real and effective. 33.Ultimately, punishment for contempt is not an end in itself. It is a means of upholding the supremacy of the law, protecting the administration of justice, maintaining respect for judicial authority, and assuring the public that court orders are meaningful commands that must be obeyed. Without an effective contempt jurisdiction, the rule of law would be seriously imperilled, and courts would be rendered incapable of performing their constitutional mandates. 34.The Supreme Court of Kenya in Republic v Ahmad Abolfathi Mohammed & another [2018] eKLR affirmed that the standard of proof in contempt proceedings is higher than proof on a balance of probabilities, though not as high as proof beyond a reasonable doubt.“It is, therefore, evident that not only do contemnors demean the integrity and authority of Courts, but they also deride the rule of law. This must not be allowed to happen. We are also conscious of the standard of proof in contempt matters. The standard of proof in cases of contempt of Court is well established. In the case of Mutitika v. Baharini Farm Limited [1985] KLR 229, 234, the Court of Appeal held that:In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt...The standard of proof beyond a reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.” 35.For an application for contempt to succeed, the applicant must establish to the requisite standard three essential elements: first, that the order alleged to have been disobeyed was clear, precise, and unambiguous; second, that the alleged contemnor had knowledge of the order; and third, that the disobedience was deliberate and willful. 36.The requirement for clarity is fundamental. A party cannot be held in contempt for failing to comply with an order whose terms are uncertain, vague, or open to multiple interpretations. The command of the court must be expressed in a language that leaves no doubt as to what is required or prohibited. 37.I have carefully considered the order in issue. I have no doubt that it was clear, precise, and unambiguous. The obligations imposed by the order were clearly discernible. The order was specific as to whom it was directed and what that person was required to do. That person was the contemnor. 38.Second, it must be shown that the alleged contemnor had knowledge of the order. Personal service of the order is one means of proving knowledge, but it is not the only one. Such knowledge may be acquired through personal service, participation in the proceedings, communication by counsel, or any other means that establishes awareness of the order and contents. The law does not permit a party who is aware of a court order to evade responsibility merely because formal service was not effected. 39.The Applicant contended that the order was made in the presence of counsel for the Respondent/contemnor, and that the extracted order and a certificate of order against Government were later served upon the Respondent and its advocates on several occasions, wrote letters to the Respondent’s/ contemnor’s Counsel, who, I note, is a County Attorney, urging settlement of the decretal sum, thus compliance with the mandamus order. This was not rebutted in any way by the alleged contemnors. 40.This Court has not lost sight of the fact that the deponent of the Replying affidavit, in an attempt to demonstrate that the failure to comply with the order was not wilful, deponed that the County Government had made remarkable strides in processing payment of the stated amount, only for the process to halt because the Ex parte Applicant’s Counsel had not provided their IFMIS number. I cannot see it in any other way than that the contemnor, as the accounting officer, had knowledge of the order. 41.In Basil Criticos v Attorney General & 8 others [2012] eKLR is that knowledge of a court order supersedes personal service where a party is shown to have had knowledge of the order.“However, the law has changed, and as it stands today, knowledge supersedes personal service for good reason. This has recently been held in Kenya Tea Growers Association vs Francis Atwoli & 5 Others, Petition No.64 of 2010, where I opined as follows;“In the case before me, I am more than satisfied that even at the higher level of beyond a reasonable doubt, when an individual has been served with and/or has knowledge of a court order but not only ignores it but in fact incites others to do the same, the threshold for contempt has been met. Francis Atwoli, in fact, went further to arrogate to himself the decision to determine when the strike should end despite the fact that the Court Order had stopped it. He went further to interpret it as made without jurisdiction and that only the “Workers Court” (the Industrial Court) had jurisdiction to determine the matter. He did not do so once, but on a number of occasions as he flew by helicopter from place to place on 18th October 2012. His contempt was obvious, and his conduct and words can attract no other finding.” 42.Considering the foregoing premises and the totality of the circumstances of this matter, including the adjournments that this Court gave to the Respondent to give time for compliance, I see no basis upon which I can conclude that the alleged contemnors were not aware of the order. 43.Third, and most importantly, there must be proof of deliberate and wilful disobedience. Contempt is not established by mere non-compliance. The Court must be satisfied that the contemnor consciously and intentionally chose to disregard the authority of the court. Where non- compliance arises from misunderstanding, impossibility of performance, or circumstances beyond the party’s control, a finding of contempt may not be justified. 44.The Respondent/alleged contemnors state that any non-compliance was not deliberate but was due to administrative, logistical and procedural constraints, including budgetary approvals, structural reorganisation and non-availability of the Applicant’s previous position. However, these alleged constraints are generally asserted and without supporting evidence. One would wonder why even the easiest part of the order, payment of compensation, would not be effected. I am left with no choice but conclude that the failure to comply has been deliberate and wilful. 45.In the upshot, I find the Applicant’s application merited. The members of the Taita Taveta County Public Service Board are all hereby found guilty of contempt of a lawful court order. They shall appear before this Court on 24th June 2026, for mitigation and sentencing. 46.Orders accordingly. READ, SIGNED AND DELIVERED THIS 11TH DAY OF JUNE 2026.OCHARO KEBIRAJUDGE